Legal pot in Delaware: Pipe dream or reality?

DOVER — On Monday, Gov. Jack Markell was in Newark for the signing of a relatively simple and noncontroversial bill that allows small restaurants to sell alcoholic beverages.

What happened instead hardly could have been anticipated.

As reported by a Wilmington radio station, several pro-marijuana activists disrupted the event, urging the governor to change the current laws. Gov. Markell, who has said he will not legalize cannabis, reiterated his stance that he is watching closely what happens in the three states that currently have legal pot.

While legalization may not happen any time soon, the tide — both nationally and locally — seems to be shifting. A recently introduced bill in the General Assembly seeks to decriminalize marijuana, and polls reflect that public sentiment is changing rapidly.

According to an October poll of Delaware residents, 56 percent of respondents said marijuana should be legalized. Conducted by the University of Delaware, the poll surveyed 902 individuals.

A March 2014 study from the national Marijuana Policy Project also found Delawareans are increasingly in favor of fewer restrictions surrounding the drug. Pollsters spoke to 951 residents, 51 percent of whom supported legalizing cannabis in the First State.

Nationally, results are similar. The Pew Research Center questioned 2,003 individuals across the country in October and recorded that 52 percent said marijuana should be made legal. In March 2010, just 41 percent of people surveyed in a similar poll felt that way. The Gallup Organization reported similar results.

“It’s not common for public opinion on social issue to move this much, this quickly,” Dr. Brewer said, noting that among young adults, the percentages are even more drastic.

Both nationally and locally, the trend generally is toward fewer restrictions and greater forgiveness.

Local impact

So what does that mean for Delaware?

Several pro-marijuana advocates took part in the annual Hummer’s Parade in Middletown on Jan. 1, much to the amusement of some spectators. (Delaware State News file/Matt Bittle)

For activists, the decriminalization bill is a first step.

“We don’t want people getting arrested for simply possessing something that’s safer than alcohol,” said Robert Capecchi, the deputy director of state policies at the Marijuana Policy Project.

House Bill 39 would change the punishment for individuals arrested with a personal use quantity of marijuana, defined as 1 ounce or less. Currently, anyone arrested with pot is guilty of an unclassified misdemeanor that carries with it a maximum of three months in jail and a $575 fine.

Under the purview of House Bill 39, an individual would be assessed a civil penalty of $100 that would not go on a criminal record, and they would not face jail time.

People caught using marijuana in public still would be guilty of an unclassified misdemeanor but face jail time of no more than five days and a fine topping out at $200.

Introduced by Rep. Helene Keeley, D-Wilmington, in January, the bill has been placed in the House Public Safety and Homeland Security Committee. It has 15 co-sponsors, all of whom are Democrats.

Come July 1, marijuana will be legal in four states: Colorado, Washington, Alaska and Oregon. Fourteen other states have decriminalized the substance.

While stereotypically cannabis legalization is portrayed as being a Democrat-championed cause, the issue is not strictly partisan. Mississippi and Nebraska, characterized by Mr. Capecchi (and traditional metrics) as Republican-leaning, are among the states that have greatly lifted restrictions on the drug. In Delaware, several Republican candidates for office in the 2014 election, including nominees for attorney general and the U.S. Senate, declared their support for decriminalization.

Though Gov. Markell has ruled out legalization while he’s in office, he has been more vague about decriminalization. A spokeswoman for the governor noted only that he “is open to continuing conversations about decriminalizing possession of small amounts of marijuana for personal use.”

His term expires in January 2017.

Rep. Keeley is confident in the bill’s chances and said in January she believes the governor stands behind the initiative.

She noted much of the support for the growing cannabis movement comes from millennials.

“There’s definitely a generational shift going here,” she said in January. “I mean, as I’ve said before, there are a lot of people out there who, instead of going home and having a martini or going home and having a glass of wine, they want to go home and they want to take a couple hits.”

Standing against

Mr. Capecchi said the only opposition he was aware of in Delaware comes from law enforcement. But even for police, the issue is not nearly as much as a hot-button one as, say, the death penalty.

Speaking for the Police Chiefs’ Council, of which he is the first vice chairman, Capitol Police Chief John Horsman said the group opposes decriminalization.

At the same time, he believes most officers support removing incarceration penalties for individuals arrested for marijuana possession, and he thinks a $100 fine is appropriate.

The group has worked with the Legislature on the bill and plans to try to come to a solution that pleases both sides, Chief Horsman said.

While he agrees with the $100 fine and lack of incarceration, Chief Horsman supports keeping the penalty a criminal, not civil, one. After an appropriate period of time, perhaps a year, it could be removed from the guilty party’s record if he or she has avoided any additional trouble, he said.

“There are so many people possibly being arrested for small amounts and affecting their future,” he said.

He also believes rushing to decriminalize or legalize the drug could have serious unintended consequences. Much like Gov. Markell, Chief Horsman would prefer to be cautious and see the long-term effects of fewer restrictions.

Attorney General Matthew P. Denn has said while he thinks marijuana usage can be harmful, officials should not have to use large quantities of their valuable time and resources prosecuting those caught carrying small amounts of pot.

He has “no problem with possession of small amounts of marijuana by adults considered to be a civil offense akin to a parking violation rather than a criminal offense,” but Mr. Denn does have some specific worries about House Bill 39, particularly with some of the language.

“How it would be enforced, because it is a very limited exception. How it would interact with other statutes in terms of driving while impaired and other types of law enforcement issues?” he asked.

Like the Police Chiefs’ Council, the Department of Justice is working with Rep. Keeley and other backers to assuage worries about the bill.

The Cannabis Bureau of Delaware is one of the advocacy groups supporting the bill. Zoe Patchell, the co-chair of the organization, said she would prefer full legalization, but members “definitely think it’s the right step.”

While the Police Chiefs Council stands against decriminalization, the first vice chairman thinks the state is afflicted with bigger and more deadly crimes.

“Police officers have a lot better things to do than worry about who’s smoking a joint,” he said.

In the end, he will enforce the laws as they are, he said.

The Delaware State Fraternal Order of Police has not taken a stance on the bill yet, President Fred Calhoun said. Leadership is waiting for the bill to progress, he said, noting it is likely amendments will be introduced.

For supporters of ending the marijuana prohibition, as some call it, one of the issues comes back to cost.

“The governor recently said he’ll take a wait and see attitude,” said Ken Abraham, president of Delaware Citizens for Criminal Justice. “What’s to see? The experiment is over.”

Proclaiming Colorado’s legalization of marijuana a “roaring success,” Mr. Abraham noted the state has made millions in taxes and license fees. In 2014, Colorado generated $52.6 million from cannabis.

Ms. Patchell referenced a 2013 report from the American Civil Liberties Union that found Delaware, between its police, judiciary and corrections, spent $13.2 million enforcing marijuana possession laws in 2010. With 2,554 arrests, that amounted to $5,182 per arrest, the report concluded.

Mr. Horsman has several practical concerns about decriminalization. Much like Mr. Denn, he expressed a worry about ensuring other potentially intertwining laws remain enforceable.

Delivering drugs into the state is a felony, he said, arguing it is incongruous to have varying levels of punishment for related offenses. Decriminalization also would affect the state’s drug dogs, which have been trained to sniff out cannabis.

The future

Other individuals, both those associated with the cannabis movement and those not, say it could just be a matter of time until the First State decriminalizes, if not out-and-out legalizes, the drug.

Mr. Capecchi speculated at least five states could make marijuana readily accessible through ballot referendums in the 2016 election. Activists in numerous, if not all, states are pushing for popular vote efforts, with the goal of legalizing marijuana. Additionally, several state legislatures have proposed measures that would place cannabis on the ballot for citizens to support or oppose.

Believing the war on drugs to be a “total failure,” Mr. Abraham backs legalization of everything from marijuana to heroin — a position that is much rarer than support for fewer restrictions on cannabis alone.

Sentencing citizens to years in jail for drug possession undermines the public’s faith in the criminal justice, he said, although Chief Horsman doubts anyone in Delaware is doing serious time for simply having cannabis.

“If people knew all the information, these laws would change overnight,” Mr. Abraham said, referring to what he believes are unnecessary costs, both monetary and human.

He thinks Delaware will have legal marijuana by 2018.

Dr. Brewer noted lawmakers generally form opinions after the citizenry already has done so, meaning legislative bodies may take time to change statutes.

“Politicians seem very cautious about it because there’s a majority of public support, but I don’t know how many people vote on the basis of the issue,” he said.

There’s also an internal quandary for many officials who want to balance individual rights and being tough on crime, he speculated. Though the marijuana question remains up in the air to a degree, Dr. Brewer is certain of one thing.

“It’s not inevitable but if the trends in public opinion continue then there’s going to be really strong pressure to change the laws,” he said.

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